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125.

Sample Jury Instructions -- Food Fraud -- Additional Instructions

Conspiracy To Commit An Offense

Conspiracy To Defraud The United States

Basic Elements

(1) Count One of the Indictment accuses the defendants of conspiring to violate the federal mail fraud statute and to violate the Federal Food, Drug, and Cosmetic Act. Count One also accuses the defendants of conspiring to defraud the United States. It is a crime for two or more persons to conspire, or agree, to commit a criminal act even if they never actually achieve their goal.

(2) A conspiracy is a kind of criminal partnership. For you to find any one of the defendants guilty of the conspiracy charge, the United States must prove each and every one of the following elements beyond a reasonable doubt:

(A) First, that two or more persons conspired, or agreed, to commit the crimes described above.

(B) Second, that the defendant you are considering knowingly and voluntarily joined the conspiracy.

(C) And third, that a member of the conspiracy did one of the overt acts described in the Indictment for the purpose of advancing or helping the conspiracy.

(3) You must be convinced that the United States has proved all of these elements beyond a reasonable doubt in order to find any one of the defendants guilty of the conspiracy charge.

(4) In the context of a conspiracy to defraud the United States, the word "defraud" is not limited to its ordinary meaning of cheating the government out of money or property. "Defraud" also means impairing, obstructing, or defeating the lawful function of any government agency or department by dishonest means. In this case, the Indictment alleges that the defendants and their co-conspirators sought to impair, impede and defeat the United States' efforts to regulate and control the manufacture and distribution of orange concentrate products by attempting to cover up the addition of sugar and other substances in products sold as unsweetened orange juice products, and to prevent government personnel from uncovering those activities.

Pattern Criminal Jury Instructions, 6th Cir. (1991), 3.01A.

Pattern Criminal Jury Instructions, 6th Cir. (1991), 3.01B.

Mail Fraud

(1) Counts 2 through 13 of the Indictment charge that between January 1985 and December 1990 the defendants did knowingly and willfully devise a scheme and artifice to defraud, and obtain money and property from, buyers of foods represented to be unsweetened orange juice products, by means of false and fraudulent pretenses, representations and promises, knowing that the pretenses, representations, and promises were false when made. Counts 2 through 13 identify twelve separate mailings that the Indictment charges were made in furtherance of the scheme to defraud. Each of the defendants is charged as an aider and abettor as well as a principal for each of the offenses. I will explain the concept of being an aider and abettor later.

(2) The general nature of the scheme to defraud as alleged in Counts 2 through 13 of the Indictment is that the defendants sold to customers foods represented to be orange juice from concentrate and concentrated orange juice for manufacturing, when in fact, as a result of the acts of the defendants, those products contained substantial quantities of beet sugar, syrup containing sugar, or citric acid, which ingredients were not orange juice or orange juice concentrate.

(3) The United States, therefore, assumes the responsibility of proving each of the essential elements of using the mails to further a scheme to defraud as charged in Counts 2 through 13.

Devitt, Blackmar & O'Malley, Federal Jury Practice & Instructions - Criminal, § 40.01 (modified).

Elements of Mail Fraud

(1) In order to sustain its burden of proof for the crime of using the mails to further a scheme or plan to defraud as charged in Counts 2 through 13 of the Indictment, the United States must prove the following three essential elements beyond a reasonable doubt:

(A) First, that the defendant that you are considering knowingly and willfully devised or knowingly and willfully participated in a scheme or artifice to obtain money or property by means of false or fraudulent pretenses, representations, or promises as detailed in Counts 2 through 13 of the Indictment;

(B) Second, that the defendant that you are considering did so with the intent to defraud;

(C) Third, that in advancing, or furthering, or carrying out this schemeto obtain money or property by means of false or fraudulent pretenses, representations, or promises, the defendant that you are considering used the mails or caused the mails to be used.

Devitt, Blackmar & O'Malley, Federal Jury Practice & Instructions - Criminal, § 40.03.

United States v. Bibby, 752 F.2d 1116, 1125-26 (6th Cir. 1985), cert. denied, 475 U.S. 1010 (1986).

"False" or "Fraudulent" -- Defined

A statement or representation is "false" or "fraudulent" within the meaning of this statute if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be "false" or "fraudulent" when it constitutes a half truth, or effectively conceals a material fact, with intent to defraud. A "material fact" is a fact that would be important to a reasonable person in deciding whether to engage or not engage in a particular transaction.

Fifth Circuit Pattern Jury Instructions No. 23, p. 103-04.

False or Fraudulent Representations

The "false or fraudulent representations" charged in the Indictment are that the products sold by Moon Down were represented to be unsweetened orange juice products, when in fact those products contained substantial quantities of beet sugar, syrup containing sugar, or contained citric acid.

Intent to Defraud

To act with "intent to defraud" means to act knowingly and with the intention or the purpose to deceive or cheat.

An "intent to defraud" is accompanied, ordinarily, by a desire or a purpose to bring about some gain or benefit to oneself or some other person or by a desire or a purpose to cause some loss to some person.

Devitt, Blackmar & O'Malley, Federal Jury Practice & Instructions -- Criminal § 16.07.

Use of Mails Defined

(1) The use of the United States mails is an essential element of the offense of mail fraud as charged in Counts 2 through 13 of the Indictment.

(2) The United States is not required to prove the defendant that you are considering actually mailed anything or that the defendants that you are considering even intended that the mails would be used to further, or to advance, or to carry out the scheme to defraud.

(3) The United States must prove beyond a reasonable doubt, however, that the mails were, in fact, used in some manner to further, or to advance, or to carry out the scheme to defraud. The United States must also prove that the use of the mails would follow in the ordinary course of business or events or that the use of the mails by someone was reasonably foreseeable.

(4) It is not necessary for the United States to prove that the item itself was false or fraudulent or contained any false or fraudulent statement, representation, or promise, or contained any request for money or thing of value.

(5) The United States must prove beyond a reasonable doubt, however, that the use of the mails furthered, or advanced, or carried out, in some way, the scheme to defraud.

(6) The United States may prove this by establishing either that the completion of the defendant's scheme to defraud or that the prevention of its detection was in some way dependent upon the mailing.

Devitt, Blackmar & O'Malley, Federal Jury Practice & Instructions -- Criminal § 40.04 (modified).

Schmuck v. United States, 489 U.S. 705, 710-15 (1989); United States v. Lane, 474 U.S. 438, 451-52 (1986); United States v. Griffith, No. 93-5373, slip op. at 11-12 (6th Cir. February 28, 1994); United States v. Oldfield, 859 F.2d 392, 400-02 (6th Cir. 1988); United States v. Henson, 848 F.2d 1374, 1378-80 (6th Cir. 1988), 488 U.S. 1005 (1989); United States v. Strong, 702 F.2d 97, 100 (6th Cir. 1983).

Interstate Shipment of Adulterated Food

(1) Counts 14 through 21 charge that the defendants, with the intent to defraud or mislead, unlawfully introduced and delivered for introduction, or caused to be introduced and delivered for introduction, into interstate commerce, foods labeled as, and otherwise represented to be, orange concentrate and unsweetened concentrated orange juice for manufacturing, and that these foods were adulterated in violation of the Federal Food, Drug, and Cosmetic Act.

(2) Each of the defendants is charged as an aider and abettor as well as a principal for each of these offenses. I will explain the concept of aiders and abettors later.

(3) Each count charges that an identified shipment to a particular customer of Moon Down was a separate violation of the Federal Food, Drug, and Cosmetic Act. The customer's location, the Moon Down invoice number, and date of the shipment alleged are set forth in the Indictment.

(4) In order to establish the offense charged in Counts 14 through 21, the United States must prove each of the following three elements beyond a reasonable doubt for each shipment in question:

(A) First, that the defendant you are considering caused a food to be introduced or delivered for introduction into interstate commerce that was labeled as, or otherwise represented to be, orange concentrate or unsweetened concentrated orange juice for manufacturing;

(B) Second, that the food was adulterated (as will be defined shortly) when so introduced or delivered for introduction into interstate commerce.

(C) Third, that the defendant you are considering acted with the intent to defraud or mislead.

21 U.S.C. §§ 331(a), 333(a)(2).

United States v. Beech-Nut Nutrition Corp., et al., No. CR-86-715 (E.D.N.Y.), February 9, 1988, Transcript at 5237-38. (A copy of the Beech-Nut jury charge is being provided to the Court.)

Food -- Defined

The term "food" as it relates to this case means articles used for food or drink for persons, and articles used for components of any such article.

21 U.S.C. § 321(f).

United States v. Beech-Nut Nutrition Corp., et al., No. CR-86-715 (E.D.N.Y), February 9, 1988, Transcript at 5245.

Delivered for Introduction into Interstate Commerce

(1) The first element requires proof that a defendant caused a food to be introduced or delivered for introduction into interstate commerce that was labeled as, or otherwise represented to be, orange concentrate or unsweetened concentrated orange juice for manufacturing.

(2) Interstate commerce means commerce between any state and any place outside thereof, including foreign countries.

(3) A showing that a food was introduced into interstate commerce shows that it was also delivered for introduction into interstate commerce.

(4) The delivery into interstate commerce need not be made by the defendant him- or herself. The Federal Food, Drug and Cosmetic Act prohibits people from causing the introduction or delivery for introduction into interstate commerce of an adulterated or misbranded food. A person causes the introduction or delivery for introduction into interstate commerce of a food when he or she does an act with knowledge that the product will, in the ordinary course of business, move in interstate commerce.

21 U.S.C. §§ 321(a)(1), 321(b).

United States v. Beech-Nut Nutrition Corp., et al., No. CR-86-715, February 9, 1988, Transcript at 5239.

230 Boxes, More or Less, of Fish v. United States, 168 F.2d 361, 363 (6th Cir. 1948); Roseman v. United States, 364 F.2d 18, 24 (9th Cir. 1966), cert. denied, 386 U.S. 918 (1967); United States v. Millpax, Inc., 313 F.2d 152, 155 (7th Cir.), cert. denied, 373 U.S. 903 (1963); Drown v. United States, 198 F.2d 999, 1004-05 (9th Cir. 1952), cert. denied, 344 U.S. 920 (1953); United States v. Sanders, 196 F.2d 895, 898 (10th Cir.), cert. denied, 344 U.S. 829 (1952); Mueller v. United States, 262 F.2d 443, 446 (5th Cir. 1958).

Adulteration Defined

(1) The second element refers to the fact that the food was adulterated when delivered.

(2) The Federal Food, Drug, and Cosmetic Act protects consumers from so-called "economic adulteration" by which less expensive ingredients are substituted, or the proportion of more expensive ingredients is diminished, so that the food is inferior to what the consumer would expect to receive when purchasing it.

(3) You should find a food to be adulterated if a valuable constituent, in this case, orange juice concentrate, was, in whole or in part, omitted from the product, or if some other substance, beet sugar or syrup containing sugar, had been substituted, in whole or in part, for orange juice concentrate.

(4) If you find that the food product was sold in either one or both of these conditions, then you should find that the food was adulterated.

(5) The test of adulteration does not depend on whether or not the article is harmful to the health of the consumer.

21 U.S.C. §§ 342(b)(1), 342(b)(2).

United States v. Beech-Nut Nutrition Corp., et al., No. Cr. 86-715, February 9, 1988, Transcript at 5238.

United States v. 716 Cases . . . Tomatoes, 179 F.2d 174, 176 (10th Cir. 1950); United States v. Schider, 246 U.S. 519, 521-22 (1918); Van Liew v. United States, 321 F.2d 664, 670 (5th Cir. 1963); Federal Security Adm'r v. Quaker Oats Co., 318 U.S. 218, 230 (1943); Grocery Manufacturers of America v. Gerace, 755 F.2d 993, 1000 (2d Cir.), cert. denied, 474 U.S. 820 (1985); United States v. Article . . . Sudden Change, 409 F.2d 734, 740 (2d Cir. 1969); United States v. Antonio Corrao Corp., 185 F.2d 372, 376 (2d Cir. 1950); United States v. 36 Drums of Pop'n Oil, 164 F.2d 250, 252 (5th Cir. 1947).

Elements of Interstate Shipment of Misbranded Foods

(1) Counts 22 through 29 charge that the defendants, with the intent to defraud or mislead, unlawfully introduced and delivered for introduction, and caused to be introduced and delivered for introduction, into interstate commerce, foods labeled as, and otherwise represented to be, orange concentrate and unsweetened concentrated orange juice for manufacturing, and that these foods were misbranded in violation of the Federal Food, Drug, and Cosmetic Act.

(2) Each of the defendants is charged as an aider and abettor as well as a principal for each of these offenses. Once again, I will explain the concept of aiders and abettors later.

(3) Each count charges that an identified shipment to a particular customer of Moon Down was a separate violation of the statutes that I just mentioned. The customer's location, the Moon Down invoice number, and date of the shipment alleged are set forth in the Indictment. These counts differ from Counts 14 through 21 in that the shipments are alleged to be misbranded rather than adulterated.

(4) In order to establish the offenses charged in Counts 22 through 29, the United States must prove each of the following three elements beyond a reasonable doubt for each shipment in question:

(A) First, that the defendant you are considering caused a food to be introduced or delivered for introduction into interstate commerce that was labeled as, or otherwise represented to be, orange concentrate or unsweetened concentrated orange juice for manufacturing.

(B) Second, that the food was misbranded when so introduced or delivered into interstate commerce, and I will explain what "misbranded" means in a moment; and

(C) Third, that the defendant you are considering acted with the intent to defraud or mislead.

21 U.S.C. §§ 331(a), 333(a)(2).

United States v. Beech-Nut Nutrition Corp., et al., No. CR-86-715 (E.D.N.Y.), February 9, 1988, Transcript at 5241-42.

Misbranding Defined

(1) Now I will tell you what "misbranded" means. Basically, an article is misbranded if it is not what it purports to be or what it is represented as.

(2) Congress intended the misbranding prohibition in the statute to permit a consumer to buy products on the basis of what they were claimed to be, and not on the basis of misrepresentations as to character and quality.

(3) A product can be misbranded even if it is not inherently dangerous or harmful.

(4) The Indictment charges that the foods identified in Counts 22-29 were misbranded in three ways. To find a defendant guilty of these counts, the United States must prove the foods to be misbranded in any one or more of the ways alleged in these counts as I will explain shortly.

(5) A food is misbranded if its labeling was false or misleading because the labeling represented or suggested that the food consisted only of unsweetened orange juice concentrate when the food actually contained beet sugar or syrup containing sugar.

(6) A food is also misbranded if the food that was offered for sale as unsweetened concentrated orange juice for manufacturing was really beet sugar.

(7) A food is also misbranded if the food represented to be concentrated orange juice for manufacturing failed to conform to the definition and standard of identity for concentrated orange juice for manufacturing as set forth by the FDA in a published regulation, in that it was composed in part of an ingredient not permitted by the definition and standard of identity, including beet sugar (without a labeling statement).

(8) As I said before, if you find that the foods specified in Counts 22-29 were introduced or delivered for introduction into interstate commerce in one, two or three of these conditions, then you should find that the food was misbranded.

21 U.S.C. §§ 343(a)(1), 343(b), 343(g).

21 C.F.R. § 146.153.

United States v. Beech-Nut Corp., et al., No. Cr.-86-715 (E.D.N.Y.), February 9, 1988, Transcript at 5242-43.

United States v. 95 Barrels of Vinegar, 265 U.S. 438, 444 (1924); United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 409 (1914); United States v. Strauss, 999 F.2d 692, 696-97 (2d Cir. 1993); United States v. Article of Food, Nuclomin, 482 F.2d 581, 585 (8th Cir. 1973); United States v. Guardian Chemical Corp., 410 F.2d 157 (2d Cir. 1969); Gray v. United States, 174 F.2d 919 (8th Cir. 1949), cert. denied, 338 U.S. 848 (1950); United States v. Two Bags . . . Poppy Seeds, 147 F.2d 123, 127 (6th Cir. 1945).

Labeling Defined

Labeling Defined

(1) The term "labeling" in the context of this case means all displays of written, printed or graphic matter upon the food, or accompanying the food.

(2) An item accompanies a food when it supplements or explains it. No physical attachment is necessary. Nor need the labeling be sent on the same date or in the same package. Thus, an item is "labeling" for a food if it explains to the judge what the particular food is represented to be.21 U.S.C. §§ 321(k), 321(m).

United States v. Beech-Nut Corp., et al., No. CR-86-715 (E.D.N.Y.), February 9, 1988, Transcript at 5245.

Kordel v. United States, 335 U.S. 345, 350 (1948); United States v. Urbuteit, 335 U.S. 355, 357 (1948); United States v. 47 Bottles . . . Jenasol, 320 F.2d 564, 568 (3d Cir.), cert. denied sub nom. Schere v. United States, 375 U.S. 953 (1963); United States v. Articles of Drug . . . 5,906 Boxes, 745 F.2d 105, 114 n. 14 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985); United States v. Diapulse Mfg. Corp. of America, 389 F.2d 612, 616 (2d Cir.), cert. denied, 392 U.S. 907 (1968).

False or Misleading Labeling

(1) The Federal Food, Drug, and Cosmetic Act's comprehensive terms condemn every statement which may mislead or deceive. The statute was enacted to enable purchasers to buy a food for what it really is.

(2) In determining whether a statement is false or misleading, the statement is not to be considered as if it is being read by experts or overly-skeptical buyers. What is pertinent is the effect the claim has on prospective purchasers who cannot be presumed to have special expertise; in other words, the effect that such a claim would have on purchasers who are simply ordinary customers for the product.

(3) Bearing in mind the broad remedial purposes of the Federal Food, Drug and Cosmetic Act in preventing deception, Congress sought to prohibit not only obviously false claims but also statements made with clever indirection and ambiguity that seek to create a misleading impression.

(4) A statement is likely to mislead if the nature of the statement, considering all of the surrounding circumstances at the time it is made, is such that a reasonable person of ordinary prudence would have been deceived or misled.

(5) A representation may be misleading even though the product itself is not harmful to good health.

United States v. 95 Barrels . . . Vinegar, 265 U.S. 438, 442-43 (1924); United States v. Strauss, 999 F.2d 692, 696-67 (2d Cir. 1993); National Nutritional Foods Ass'n v. FDA, 504 F.2d 761, 800 n.70 (2d Cir. 1974), cert. denied, 420 U.S. 946 (1975); United States v. An Article of Food, Nuclomin, 482 F.2d 581, 585 (8th Cir. 1973); V.E. Irons, Inc. v. United States, 244 F.2d 34, 39 (1st Cir.), cert. denied, 354 U.S. 923 (1957); United States v. 88 Cases, More or Less . . ., 187 F.2d 967, 971 (3d Cir. 1951); United States v. An Article of Food, Manischewitz Diet Thins, 377 F. Supp. 746, 749 (E.D.N.Y. 1974); Cf. United States v. Article

. . . Sudden Change, 409 F.2d 734, 740-41 (2d Cir. 1969).

Offered for Sale under the Name of Another Food

In determining whether a product was misbranded because it was offered for sale under the name of another food, you are not restricted to the label on the product. You may also consider oral and written representations made about the product.

Weeks v. United States, 245 U.S. 618, 622 (1918); Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963).

Standard Of Identity -- Defined

(1) You will recall that one of three ways in which I said the food could be misbranded was if you were to find that the food represented to be concentrated orange juice for manufacturing failed to conform to the definition and standard of identity for concentrated orange juice for manufacturing as set forth by the United States Food and Drug Administration in a published regulation, in that it was composed in part of ingredient not permitted by the definition and standard of identity, including beet sugar (without a labeling statement).

(2) Congress has authorized the Food and Drug Administration to publish definitions and standards of identity for food products in order to promote honesty and fair dealing in the interest of consumers. A standard of identity prescribes the name and composition of a food and specifies which ingredients and in which relative proportions those ingredients may be added to food. Any deviation from the standard of identity, once demonstrated, establishes that a product represented as or which claims to be the standardized food is misbranded. This is true whether or not the ingredients are wholesome.

(3) The purpose behind these definitions and standards of identity is to create a system under which the integrity of food products can be effectively maintained. The statutory provisions for standards of identity reflect a recognition by Congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other.

(4) Thus, a manufacturer's food product must comply with a standard of identity if its product looks like, tastes like, smells like, or is any way represented as the product covered by the standard.

(5) It is not a defense to a charge that a product fails to conform to a definition and standard of identity to show that the standard of identity involved in this case does not properly describe the products in question, namely unsweetened concentrated orange juice for manufacturing. Under the law, that product is what the standard of identity states it is.

Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 595-96 (1943); Libby, McNeill & Libby v. United States, 148 F.2d 71, 73 (2d Cir. 1945); 62 Cases of Jam v. United States, 340 U.S. 593, 600 (1951); Byrd v. United States, 154 F.2d 62 (5th Cir. 1946).

Definition and Standard of Identity:

Concentrated Orange Juice for Manufacturing

The United States Food and Drug Administration has established a definition and standard of identity for concentrated orange juice for manufacturing. Among its other requirements, this standard of identity provides that if a manufacturer adds sugar or syrup containing sugar to a product that he or she is going to call concentrated orange juice for manufacturing, the manufacturer must so reflect that addition on the label for the product by identifying the name of the ingredient added or by stating "sweetener added." In addition, citric acid cannot be added to a product represented to be concentrated orange juice for manufacturing.

Elements of Adulteration of A Food after Shipment

of One of Its Components in Interstate Commerce

(1) Counts 30 and 32 charge that the defendants, with the intent to defraud or mislead, caused a food, labeled as, and otherwise represented to be, unsweetened concentrated orange juice for manufacturing, while held for sale after shipment of one of its components in interstate commerce to Benton, Kentucky, to be adulterated in violation of the Federal Food, Drug, and Cosmetic Act.

(2) Each of the defendants is charged as an aider and abettor as well as a principal for each of these offenses.

(3) Both counts involve a specific, identified batch of orange juice product manufactured or blended by Moon Down Foods, Inc.

(4) In order to establish the offenses charged in these two counts, the United States must prove each of the following three elements beyond a reasonable doubt for the food in question:

(A) First, that one of the components of the food being held for sale was shipped in interstate commerce to Benton, Kentucky;

(B) Second, that the defendant you are considering caused that food, which was labeled as, or otherwise represented to be, unsweetened concentrated orange juice for manufacturing, to become adulterated while held for sale; and

(C) Third, that the defendant acted with an intent to defraud or mislead.

21 U.S.C. §§ 331(k), 333(a)(2).

See Baker v. United States, 932 F.2d 813, 814-15 (9th Cir. 1991); United States v. An Article of Food, 752 F.2d 11, 14 (1st Cir. 1985).

Held for Sale After Shipment in Interstate Commerce

(1) A product has been shipped in interstate commerce if one or more ingredients or components of the food had been transported in interstate commerce prior to its receipt by Moon Down Foods, Inc.

(2) A product is held for sale if it was held for any purpose other than for actual personal consumption of the recipient.

(3) A product is so held for sale without regard to how long after the shipment the misbranding or adulteration occurred, how many intrastate sales had intervened, or who had received the articles at the end of the interstate commerce.

(4) After a product has been shipped interstate, it is immaterial when or how the defendant obtained the product.

21 U.S.C. § 321(b)

United States v. Sullivan, 332 U.S. 689, 696-97 (1948); Baker v. United States, 932 F.2d 813, 814-15 (9th Cir. 1991); United States v. An Article of Food, 752 F.2d 11, 14 (1st Cir. 1985);

DeFreese v. United States, 270 F.2d 737, 739 (5th Cir. 1959), cert. denied, 362 U.S. 944 (1960)

Elements of Misbranding of a Food after Shipment of One of Its Components in Interstate Commerce

(1) Counts 31 and 33 charge that the defendants, with the intent to defraud or mislead, caused a food, labeled as, and otherwise represented to be, unsweetened concentrated orange juice for manufacturing, while held for sale after shipment of one of its components in interstate commerce to Benton, Kentucky, to be misbranded in violation of the Federal Food, Drug, and Cosmetic Act.

(2) Each of the defendants is charged as an aider and abettor as well as a principal for each of these offenses.

(3) Each of these two counts involve a specific, identified batch of orange juice product manufactured or blended by Moon Down Foods, Inc.

(4) In order to establish the offenses charged in these two counts, the United States must prove each of the following three elements beyond a reasonable doubt for the food in question:

(A) First, that one of the components of the food being held for sale was shipped in interstate commerce to Benton, Kentucky;

(B) Second, that the defendant you are considering caused that food, which was labeled as, or otherwise represented to be, unsweetened concentrated orange juice for manufacturing, to become misbranded; and

(C) Third, that the defendant acted with an intent to defraud or mislead.

21 U.S.C. §§ 331(k), 333(a)(2).

See Baker v. United States, 932 F.2d 813, 814-15 (9th Cir. 1991); United States v. An Article of Food, 752 F.2d 11, 14 (1st Cir. 1985).

Intent to Defraud or Mislead

(1) You have heard me mention "intent to defraud or mislead." As I have previously instructed you, an "intent to defraud" is the specific intent to deceive or cheat, ordinarily for the purpose of causing some financial loss to another by obtaining money in exchange for a product that is not what the product is represented to be. It is not necessary to prove that anyone was, in fact, defrauded so long as it is established beyond a reasonable doubt that the defendant acted with the intent to defraud.

(2) "Intent to mislead" means to act with the specific intent to create a false impression by misstating, omitting or concealing facts. Once again, it is not necessary to prove that anyone was, in fact, misled, so long as it is established beyond a reasonable doubt that the defendant acted with the intent to mislead.

(3) To act with the intent to defraud or mislead a user or purchaser of the product in question, means to act with the specific intent to deceive or mislead the user or purchaser about the nature of the product being used or purchased.

(4) Ordinarily, there is no way that a defendant's state of mind can be proved directly, because no one can read another person's mind and tell what that person is thinking.

(5) But a defendant's state of mind can be proved indirectly from the surrounding circumstances. This includes things like what the defendant said, what the defendant did, how the defendant acted, and any other facts or circumstances in evidence that show what was in the defendant's mind.

Devitt, Blackmar, & O'Malley, Federal Jury Practice & Instructions -- Criminal § 16.07 (modified).

Pattern Criminal Jury Instructions of the District Judge Association of the Sixth Circuit, Instruction No. 2.08 (modified).

"Intent to Defraud and Mislead": Ninth Circuit Model Jury Instruction No. 3.15 [Intent to Defraud -- Defined] (modified).

21 U.S.C. § 333(a)(2).

Deliberate Ignorance

(1) Next, I want to explain something about proving a defendant's knowledge.

(2) No one can avoid responsibility for a crime by deliberately ignoring the obvious. If you are convinced that a defendant deliberately ignored a high probability that sugar, syrup containing sugar, or citric acid was being used in the manufacture of products sold as unsweetened orange juice concentrate, concentrated orange juice for manufacturing, or frozen concentrated orange juice, then you may find that the defendant knew that sugar, syrup containing sugar, or citric acid was being used in that manufacturing process.

(3) But to find this, you must be convinced beyond a reasonable doubt that the defendant was aware of a high probability that sugar, syrup containing sugar, or citric acid was being used in the manufacture of products sold as unsweetened orange juice concentrate, concentrated orange juice for manufacturing, or frozen concentrated orange juice, and that the defendant deliberately closed his or her eyes to what was obvious. Carelessness, or negligence, or foolishness on a defendant's part is not the same as knowledge, and is not enough to convict. This, of course, is all for you to decide.

Pattern Criminal Jury Instructions, 6th Cir. (1991), 2.09

(modified).

United States v. Lee, 991 F.2d 343, 349-50 (6th Cir. 1993).